attorney-client privilege in Maryland

2024“Once the attorney-client privilege is invoked, the trial court decides as a matter of law whether the requisite privilege relationship exists, and if it does, ‘whether or not any such communication is privileged.’” E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. at 415 (quoting Harrison v. State, 276 Md. at 136 ). 52 When records requested under the MPIA are withheld on the basis of the attorney- client privilege, a trial court may conduct an in camera inspection 24 of those records if the court believes that this “is needed in order to make a responsible determination on claims of

2016It sought this assurance because, OBG argues, “it would no longer be a party to the City’s continuing WWTP Litigation” *421 and “no longer have the ability or be in a position to effectively defend itself against aspersions cast upon it by the City.” OBG avers that the promise not to disparage “was clear, unqualified, and unlimited.” “We have defined waiver as ‘the intentional relinquishment of a known right.’ ” Smith v. State, 394 Md. 184, 201 , 905 A.2d 315 (2006) (attorney-client privilege) (citations omitted); see Harrison v. State, 276 Md. 122, 137 , 345 A.2d 830 (1975) (“[T]he intent to

2015The attorney-client privilege is “based upon the public policy that an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor.” Zook, 438 Md. at 241 , 91 A.3d 1114 (quoting State v. Pratt, 284 Md. 516, 520 , 398 A.2d 421 (1979)) (internal quotation marks omitted).

2015The attorney-client privilege is “based upon the public policy that an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor.” Zook, 438 Md. at 241 , 91 A.3d 1114 (quoting State v. Pratt, 284 Md. 516, 520 , 398 A.2d 421 (1979)) (internal quotation marks omitted).

2016Newman v. State, 384 Md. 285, 308 , 863 A.2d 321, 334 (2004) ("We have held that '[o]nly the client has [the] power to waive the attorney-client privilege.’ ”) (quoting Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671, 691 , 756 A.2d 526, 537 (2000)). 6 .

2016Newman v. State, 384 Md. 285, 308 , 863 A.2d 321, 334 (2004) ("We have held that '[o]nly the client has [the] power to waive the attorney-client privilege.’ ”) (quoting Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671, 691 , 756 A.2d 526, 537 (2000)). 6 .

2015Indeed, the attorney-client privilege is one of “the oldest of the privileges for confidential communications known to the common law.” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981)).

2015Indeed, the attorney-client privilege is one of “the oldest of the privileges for confidential communications known to the common law.” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981)).

2024“Generally, the attorney-client privilege bars compelled disclosure, without the client’s consent, of attorney-client communications made in confidence between the attorney and client.” Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 690 (2000).

2020In analyzing this issue, the Court focused on the attorney- client privilege in the context of malpractice claims, and stated that “[t]he question in this case is whether we should extend the implied waiver rule more broadly to attorney-client privileged communications between the client and successor counsel when the client, by claiming malpractice or negligence against former counsel, has injected an issue that also implicates successor counsel’s negligence in the same matter.” Id. at 693 .

2019We have stated as much in cases involving the psychotherapist-patient privilege, Bryant , 393 Md. at 202 , 900 A.2d 227 ; the attorney-client privilege, E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc. , 351 Md. 396 , 406, 718 A.2d 1129 (1998) ; and the accountant-client privilege, Sears, Roebuck & Co. v. Gussin , 350 Md. 552 , 562, 714 A.2d 188 (1998).

2019We have stated as much in cases involving the psychotherapist-patient privilege, Bryant , 393 Md. at 202 , 900 A.2d 227 ; the attorney-client privilege, E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc. , 351 Md. 396 , 406, 718 A.2d 1129 (1998) ; and the accountant-client privilege, Sears, Roebuck & Co. v. Gussin , 350 Md. 552 , 562, 714 A.2d 188 (1998).

2008We have stated that the “overwhelming authority holds that the attorney-client privilege is generally not violated by requiring the disclosure of the payment of attorney’s fees and expenses.” In re Criminal Investigation No. 1/242Q, 326 Md. 1, 7 , 602 A.2d 1220 (1992).

2008We have stated that the “overwhelming authority holds that the attorney-client privilege is generally not violated by requiring the disclosure of the payment of attorney’s fees and expenses.” In re Criminal Investigation No. 1/242Q, 326 Md. 1, 7 , 602 A.2d 1220 (1992).

2003See Helferstay v. Creamer, 58 Md.App. 263 , 473 A.2d 47 (1984) (holding that the attorney-client privilege "is based upon the public policy that `an individual in a free society should be encouraged to consult with his attorney whose function it is to counsel and advise him and he should be free from apprehension of compelled disclosure by his legal advisor'"); Wadman v. McBirney, 51 Md.App. 385 , 443 A.2d 978 (1982) (stating that "[o]nce the [legal] profession is affected by the loss of the privileged communication, as it now exists, [it] is doomed just as if it were infected by an incurable

2003See Helferstay v. Creamer, 58 Md.App. 263 , 473 A.2d 47 (1984) (holding that the attorney-client privilege "is based upon the public policy that `an individual in a free society should be encouraged to consult with his attorney whose function it is to counsel and advise him and he should be free from apprehension of compelled disclosure by his legal advisor'"); Wadman v. McBirney, 51 Md.App. 385 , 443 A.2d 978 (1982) (stating that "[o]nce the [legal] profession is affected by the loss of the privileged communication, as it now exists, [it] is doomed just as if it were infected by an incurable

2025Park v. Cotter, 309 Md. 573, 591 (1987) (“[T]he authority to waive the privilege belongs to the client alone.”); Caffrey v. Dep’t of Liquor Control for Montgomery Cnty., 370 Md. 272 , 303–04 (2002) (county is entitled to assert or waive the attorney-client privilege in Maryland Public Information Act dispute); Geier, 225 Md.

2004We have held that “[o]nly the client has [the] power to waive the attorney-client privilege.” Parler & Wobber, 359 Md. at 691 , 756 A.2d at 537 ; see City of College Park v. Cotter, 309 Md. 573, 591 , 525 A.2d 1059, 1067 (1987).

2020After discussing 34 cases from other states, we determined that the record in Parler supported “an implied waiver of the attorney-client privilege as to all the attorneys who were involved in defending the [clients] in the underlying litigation.” Id. at 700 (quoting Hearn v. Rhay, 68 F.R.D. 574, 580 (E.D.

2000It explained: In Hearn v. Rhay, 68 F.R.D. 574 (D.C.Wash.1975), the United States District Court for Eastern Washington developed a test to determine whether the facts in a given case support an implied waiver of the attorney-client privilege.

1998For instance, in United States v. Kovel, 296 F.2d 918, 922 (2nd Cir.1961), the United States Court of Appeals for the Second Circuit concluded, that information communicated to an accountant, when the accountant had been employed by a law firm to explain a complicated tax scenario, would be protected by the privilege if the information communicated was reasonably related to rendering proper representation.

1998For instance, in United States v. Kovel, 296 F.2d 918, 922 (2nd Cir.1961), the United States Court of Appeals for the Second Circuit concluded that information communicated to an accountant, when the accountant had been employed by a law firm to explain a complicated tax scenario, would be protected by the privilege if the information communicated was reasonably related to rendering proper representation.

1994The attorney-client privilege protects only confidential communications. ‘Fee arrangements usually fall outside the scope of the privilege because such information ordinarily reveals no confidential professional communication between attorney and client, and not because such information may not be incriminating.’ In re Osterhoudt, 722 F.2d at 593 ; see Ricks, 776 F.2d at 465 .

1992One rationale for excluding fee information from the attorney-client privilege was stated in In re: Osterhoudt, 722 F.2d at 593 : “Fee arrangements usually fall outside the scope of the privilege simply because such information ordinarily reveals no confidential professional communication between attorney and client, and not because such information may not be incriminating.” Another was stated in In re Shargel: It seems evident to us that a broad privilege against the disclosure of the identity of clients and of fee information might easily become an immunity for corrupt or criminal acts.

1979E.g., United States v. Alvarez, supra, 519 F. 2d at 1046 (psychiatrist); United States v. Kovel, 296 F. 2d 918, 922 (2d Cir. 1961) (accountant); People v. Lines, 13 Cal. 3d 500 , 531 P. 2d 793, 800-03 , 119 Cal. Rptr. 225, 232-35 (1975) (psychiatrist); accord, 3 B.

1979E.g., United States v. Alvarez, supra, 519 F. 2d at 1046 (psychiatrist); United States v. Kovel, 296 F. 2d 918, 922 (2d Cir. 1961) (accountant); People v. Lines, 13 Cal. 3d 500 , 531 P. 2d 793, 800-03 , 119 Cal. Rptr. 225, 232-35 (1975) (psychiatrist); accord, 3 B.

2019We have stated as much in cases involving the psychotherapist-patient privilege, Bryant , 393 Md. at 202 , 900 A.2d 227 ; the attorney-client privilege, E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc. , 351 Md. 396 , 406, 718 A.2d 1129 (1998) ; and the accountant-client privilege, Sears, Roebuck & Co. v. Gussin , 350 Md. 552 , 562, 714 A.2d 188 (1998).

2019We have stated as much in cases involving the psychotherapist-patient privilege, Bryant , 393 Md. at 202 , 900 A.2d 227 ; the attorney-client privilege, E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc. , 351 Md. 396 , 406, 718 A.2d 1129 (1998) ; and the accountant-client privilege, Sears, Roebuck & Co. v. Gussin , 350 Md. 552 , 562, 714 A.2d 188 (1998).

2015We recognized in Blair v. State that “[although the attorney-client privilege and the work product doctrine ‘appear to embrace the same concepts of confidentiality and zealous client advocacy, the work product doctrine is separate and distinct from the attorney-client privilege.’ ” 130 Md.App. 571, 605 , 747 A.2d 702 (2000) (quoting E.I. du Pont de Nemours & Co., 351 Md. at 406 , 718 A.2d 1129 ); see also Pratt v. State, 39 Md.App. 442 , 446 n. 2, 387 A.2d 779 (1978) (“The work product doctrine ... is separate from the attorney-client privilege and serves to protect materials from discovery th

2015We recognized in Blair v. State that “[although the attorney-client privilege and the work product doctrine ‘appear to embrace the same concepts of confidentiality and zealous client advocacy, the work product doctrine is separate and distinct from the attorney-client privilege.’ ” 130 Md.App. 571, 605 , 747 A.2d 702 (2000) (quoting E.I. du Pont de Nemours & Co., 351 Md. at 406 , 718 A.2d 1129 ); see also Pratt v. State, 39 Md.App. 442 , 446 n. 2, 387 A.2d 779 (1978) (“The work product doctrine ... is separate from the attorney-client privilege and serves to protect materials from discovery th

2011In Fraidin v. Weitzman, this Court held that a civil defendant did not waive the attorney-client privilege when the defendant asserted that he relied on advice of counsel for an issue that was uncontroverted rather than as a defense to liability for wrongdoing. 93 Md.App. 168 , 611 A.2d 1046 (1992).

2011In Fraidin v. Weitzman, this Court held that a civil defendant did not waive the attorney-client privilege when the defendant asserted that he relied on advice of counsel for an issue that was uncontroverted rather than as a defense to liability for wrongdoing. 93 Md.App. 168 , 611 A.2d 1046 (1992).

2015The statute provides that “[a] person may not be compelled to testify in violation of the attorney-client privilege.” The Court of Appeals has declared that the statute also “prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice.” Zook v. Pesce, 438 Md. 232, 240-41 , 91 A.3d 1114 (2014) (quoting E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414 , 718 A.2d 1129 (1998)) (internal quotation marks omitted); see also CR-RSC Tower I, LLC v. RSC Tower I, LLC, 202 Md.App. 307, 363 , 32 A.3d 456 (2011), aff'd

2015The statute provides that “[a] person may not be compelled to testify in violation of the attorney-client privilege.” The Court of Appeals has declared that the statute also “prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice.” Zook v. Pesce, 438 Md. 232, 240-41 , 91 A.3d 1114 (2014) (quoting E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414 , 718 A.2d 1129 (1998)) (internal quotation marks omitted); see also CR-RSC Tower I, LLC v. RSC Tower I, LLC, 202 Md.App. 307, 363 , 32 A.3d 456 (2011), aff'd

2014That exception establishes that, “in a dispute between putative heirs or devisees under a will or trust, the attorney-client privilege does not bar admission of testimony and evidence regarding communication between the decedent and any attorneys involved in the *366 creation of the instrument, provided that evidence or testimony tends to help clarify the donative intent of the decedent.” Zook, 438 Md. at 242 , 91 A.3d 1114 ; see Benzinger v. Hemler, 134 Md. 581, 586 , 107 A. 355 (1919).

2014That exception establishes that, “in a dispute between putative heirs or devisees under a will or trust, the attorney-client privilege does not bar admission of testimony and evidence regarding communication between the decedent and any attorneys involved in the *366 creation of the instrument, provided that evidence or testimony tends to help clarify the donative intent of the decedent.” Zook, 438 Md. at 242 , 91 A.3d 1114 ; see Benzinger v. Hemler, 134 Md. 581, 586 , 107 A. 355 (1919).

2011Moreover the record reveals that no objection was made to disclosure of the records to the State following the court’s ruling, nor was any other relief sought.[ 21 ] The United States Supreme Court, when considering the “importance” of the attorney-client privilege, declined to hold that orders adverse to the privilege were immediately appeal-able under the collateral order doctrine stating “we routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.” Mohawk Industries, 558 U.S. at-, 130 S.Ct. at 606 , 175

2011Moreover the record reveals that no objection was made to disclosure of the records to the State following the court’s ruling, nor was any other relief sought.[ 21 ] The United States Supreme Court, when considering the “importance” of the attorney-client privilege, declined to hold that orders adverse to the privilege were immediately appeal-able under the collateral order doctrine stating “we routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system.” Mohawk Industries, 558 U.S. at-, 130 S.Ct. at 606 , 175

2003It is well settled that the attorney-client privilege applies to documents prepared by the client at the request of the attorney, provided that the documents “relate to professional advice and to the subject-matter about which such advice is sought.” Lanasa v. State, 109 Md. 602, 617 , 71 A. 1058 (1909).

1998In discussing the “legal advice” prong of the attorney-client privilege, the court in Lanasa v. State, 109 Md. 602 , 71 A. 1058 (1909), stated: “[T]o make the communications privileged, they ... must relate to professional advice and to the subject-matter about which such advice is sought.” 109 Md. at 617 , 71 A. at 1064 (emphasis added).

2003See Clark v. United States, 289 U.S. 1 , 53 S.Ct. 465 , 77 L.Ed. 993 (1933);In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.l994)(“The crime fraud exception to the attorney-client privilege provides *45 that a client’s communications with an attorney wall not be privileged if made for the purpose of committing or furthering a crime or fraud.”)(quoting In re Grand Jury Subpoena, 884 F.2d 124, 127 (4th Cir.1989)); Carter v. Maryland, 149 Md.

2003See Clark v. United States, 289 U.S. 1 , 53 S.Ct. 465 , 77 L.Ed. 993 (1933);In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.l994)(“The crime fraud exception to the attorney-client privilege provides *45 that a client’s communications with an attorney wall not be privileged if made for the purpose of committing or furthering a crime or fraud.”)(quoting In re Grand Jury Subpoena, 884 F.2d 124, 127 (4th Cir.1989)); Carter v. Maryland, 149 Md.

1979E.g., United States v. Alvarez, supra, 519 F. 2d at 1046 (psychiatrist); United States v. Kovel, 296 F. 2d 918, 922 (2d Cir. 1961) (accountant); People v. Lines, 13 Cal. 3d 500 , 531 P. 2d 793, 800-03 , 119 Cal. Rptr. 225, 232-35 (1975) (psychiatrist); accord, 3 B.

1979E.g., United States v. Alvarez, supra, 519 F. 2d at 1046 (psychiatrist); United States v. Kovel, 296 F. 2d 918, 922 (2d Cir. 1961) (accountant); People v. Lines, 13 Cal. 3d 500 , 531 P. 2d 793, 800-03 , 119 Cal. Rptr. 225, 232-35 (1975) (psychiatrist); accord, 3 B.

2015We recognized in Blair v. State that “[although the attorney-client privilege and the work product doctrine ‘appear to embrace the same concepts of confidentiality and zealous client advocacy, the work product doctrine is separate and distinct from the attorney-client privilege.’ ” 130 Md.App. 571, 605 , 747 A.2d 702 (2000) (quoting E.I. du Pont de Nemours & Co., 351 Md. at 406 , 718 A.2d 1129 ); see also Pratt v. State, 39 Md.App. 442 , 446 n. 2, 387 A.2d 779 (1978) (“The work product doctrine ... is separate from the attorney-client privilege and serves to protect materials from discovery th

2015We recognized in Blair v. State that “[although the attorney-client privilege and the work product doctrine ‘appear to embrace the same concepts of confidentiality and zealous client advocacy, the work product doctrine is separate and distinct from the attorney-client privilege.’ ” 130 Md.App. 571, 605 , 747 A.2d 702 (2000) (quoting E.I. du Pont de Nemours & Co., 351 Md. at 406 , 718 A.2d 1129 ); see also Pratt v. State, 39 Md.App. 442 , 446 n. 2, 387 A.2d 779 (1978) (“The work product doctrine ... is separate from the attorney-client privilege and serves to protect materials from discovery th

2025See id. at 110–11 (information given by defendant to his attorney was 21 Commissioner Coates’s counsel crystallized her client’s position on waiver at the deposition: [COUNSEL FOR THE BOARD]: [I]s it your position that the attorney-client privilege has been waived as to any and all matters during his entire tenure as the county attorney for Charles County? [COUNSEL FOR COMMISSIONER COATES]: No. My position is that anything that is at issue in this lawsuit, including the Sargeant investigation, which is really at the heart of this lawsuit, has been waived.

2008We held that “[t]he prosecutor’s repeated questions as to when and what petitioner told his attorney went beyond the scope of proper cross-examination and invaded the attorney-client privilege.” Id. at 130-31 , 919 A.2d at 1214 .

2016It sought this assurance because, OBG argues, “it would no longer be a party to the City’s continuing WWTP Litigation” *421 and “no longer have the ability or be in a position to effectively defend itself against aspersions cast upon it by the City.” OBG avers that the promise not to disparage “was clear, unqualified, and unlimited.” “We have defined waiver as ‘the intentional relinquishment of a known right.’ ” Smith v. State, 394 Md. 184, 201 , 905 A.2d 315 (2006) (attorney-client privilege) (citations omitted); see Harrison v. State, 276 Md. 122, 137 , 345 A.2d 830 (1975) (“[T]he intent to

2016It sought this assurance because, OBG argues, “it would no longer be a party to the City’s continuing WWTP Litigation” *421 and “no longer have the ability or be in a position to effectively defend itself against aspersions cast upon it by the City.” OBG avers that the promise not to disparage “was clear, unqualified, and unlimited.” “We have defined waiver as ‘the intentional relinquishment of a known right.’ ” Smith v. State, 394 Md. 184, 201 , 905 A.2d 315 (2006) (attorney-client privilege) (citations omitted); see Harrison v. State, 276 Md. 122, 137 , 345 A.2d 830 (1975) (“[T]he intent to